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Prostitution in Canada: You Can’t Talk About It, But You Can Do It

When buying and selling sex in Canada is legal, how do you decide what parts of Canada’s Criminal Code criminalizing prostitution-related activities are unconstitutional and deserving of abolition?

You look at today’s decision from the Ontario Court of Appeal in Canada v. Bedford 2012 ONCA 186 and recognize that while you still cannot communicate in public or in a motor vehicle to discuss the sale of sex, you can sell sex, just like before, without fear of arrest, and in twelve months you can legally offer sexual services from your own bedroom, without being charged for running or occupying a “common bawdy-house”.

So, what is a “common bawdy-house”? The words are used interchangeably with “brothel” and connote vulgarity, indecency, and debauchery. The Ontario Court did not strike down the law on keeping or occupying a common bawdy-house, rather they deleted the word “prostitution” from the definition section which now reads:

“a common bawdy-house is a place kept or occupied for the purpose of prostitution or the practice of acts of indecency”.

With one stroke of a judicial pen, sex workers can soon legally offer their services from their home, an option that was otherwise unavailable to them. Without this change in the law, sex workers can only work the streets or meet their “dates” in a hotel or a client’s home.

The crime of keeping or occupying a common bawdy-house was legislated to combat neighbourhood disruption or disorder and safeguard public health and safety, however, the Court today ruled that the safety of working girls is more important than maintaining a quiet neighbourhood, recognizing the extreme risks of harm that befall street sex trade workers.

The Court also held that the law against “living off the avails of prostitution”, while intended to target pimps, was inadvertently outlawing reasonable services required by prostitutes including drivers, spotters, and bodyguards. Thus, the Court inserted language into the Criminal Code that only bars commercial relationships between prostitutes and their service providers where the relationship is conducted “in circumstances of exploitation”.

The decriminalization of these Criminal Code provisions raise difficult issues that fall along ideological lines. Prime Minister Harper is on record as saying that prostitution is bad for society and harmful to communities. .

Meanwhile liberal factions believe the Court’s tinkering with the law does not go nearly far enough. They seek complete decriminalization of prostitution laws as modeled by the Netherlands experience.

For Canadians, the jury is out until the Supreme Court of Canada rules on the issue or the Harper government takes a stab at enacting laws that maintain the illegality of prostitution-related offences without offending the Charter of Rights and Freedoms and the protection of life, liberty and security of the person.

9 thoughts on “Prostitution in Canada: You Can’t Talk About It, But You Can Do It”

There are some limited parallels to be drawn between this and safe injection sites (acknowledging that there are significant differences between prostitution in and of itself and drug addiction, of course).

Prostitution is going to happen. There is no practical way to prevent it from happening. By permitting it under particular circumstances geared toward increasing the safety of the participants, and reducing their exploitation, overall harm (both to the participants and to society) can potentially be reduced. Some might say prostitution is not good for society, so it shouldn’t be permitted at all. But isn’t it even worse for society for prostitution to take place on the streets, in dangerous circumstances, with no regulation? There’s no benefit from sticking your head in the sand about it.

You bring up the Netherlands, which is an interesting example. The Netherlands made efforts to increase the safety of sex workers by legalizing and regulating prostitution; however it is my understanding that they are now looking at a situation where organized crime has gotten involved and human trafficking is a considerable problem. Any imitation of the Netherlands model should not be adopted without a careful consideration to preventing something similar from happening here.

It’s a long way from a done deal. I assume that Canada will seek a Supreme Court opinion, then will amend its laws accordingly, if necessary. Even if some of the appropriate laws are changed, at least the people of Canada will have more up to date laws which reflect the current views of Canadians, not just interest groups, pro or con.

I doubt that Canadian values have changed much, in that folk continue to view prostitution as not good for the community or appropriate to happen where they live. What parent would want his daughter or son involved with this activity? The problem has been the slippery slope of the law in trying to have half-measures. We will either have to ban the buying or selling of sex and other similar listed behaviours altogether, or we will just have a wide-open society. I don’t think the Amsterdam experience of open prostitution and drug-use has been very successful in reducing the underworld element, exploitation, or the incidence of negative societal consequences. The Legacy of the Liberal Party has legally taken Canada down a social slide. Certainly more could be done to eliminate the street prostitution aspect, as that is where the young can become a runaway and just too easily slip into that lifestyle in order to survive on the street. The law and the Courts are not reflecting mainstream community values, due to the power of the Charter. The federal Conservatives will do what they can to hold back the dam burst, and they won’t get any help from the NDP, as some view them as ‘sellers’ of a similar sort.

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